As appeared in EP Magazine, June 2006: Volume 36, Issue 6.

There are many types of governmental benefits available to a special needs individual, such as medical and cash assistance, food stamps and housing subsidies. This much-needed assistance may be available at the federal, state and local levels. Every program has its own eligibility guidelines, whether financial, or otherwise, and each benefit requires some sort of application. Unfortunately, individuals entitled to benefits often are denied assistance upon initial application for improper reasons, or their benefits are wrongfully decreased or terminated at a later date. Whenever a government agency makes a determination regarding eligibility for benefits, however, it must offer an appeals process. You just need to know what the appeal process is, how to access it and what steps to take. This article provides a brief overview of the appeals procedures for the Medicaid and Supplemental Security Income programs. Please remember that an appeal also will be available if other public benefits are denied or terminated.

Medicaid: The Medicaid program is a joint federal and state medical assistance program for certain medically and financially eligible individuals, including qualified disabled persons. Although the federal law requires some uniformity, the services and programs vary quite widely from state to state. Programs are managed by a state agency, often called the Department of Health and Human Services, or DHHS. Whenever DHHS makes a decision about Medicaid eligibility benefits, a written notice should be sent to you, the applicant or recipient, explaining the decision.

For example, if you are denied Medicaid benefits either upon initial application or later at as a result of a redetermination, the notice should specify the reason for the denial. The notice also should provide enough detail to understand the decision and how it was reached. For example, if being over the income limit is the reason for denial, the notice should specify not only the income limit DHHS says applies, but also how DHHS calculated your income. There are many possible reasons for a denial, not just income or resource limits, so it is important to read the notice carefully. Remember, mistakes happen, but you will not detect them without a thorough review.

If you cannot understand the notice, perhaps you were not given enough information; without specifics, it is impossible to figure out whether DHHS is correct, or whether its decision is flawed in some way. The failure to provide specific information is a violation of your rights in and of itself; therefore, if you were denied benefits but cannot determine the reason for denial, you would not only challenge the denial, but complain about the incomplete nature of the notice itself as a second issue on appeal.

The first step in the appeal process for the Medicaid program is an administrative hearing, commonly known as a “fair hearing.” You may request a fair hearing whenever you believe DHHS is mistaken in its analysis and your Medicaid benefits are adversely affected in some way. The request should be made promptly, but no later than 30 days from the date of the notice (or 10 days if requesting continued benefits during the appeal itself). A request may be made verbally or in writing, although a written request is always preferable. DHHS often is willing to discuss the issues both before and after a request for a fair hearing has been made. Sometimes a supervisor will get involved and resolve the situation, eliminating the need for a hearing.

When you believe DHHS has improperly decreased or eliminated existing benefits, it is important to request that your benefits continue during the appeal process; such a request, often referred to as “aid paid pending,” must be made within 10 days of the denial or reduction notice. As a cautionary note, however, you will be asked to repay these “continued” payments if you ultimately lose the appeal.

Fair hearings are conducted before a hearings officer, who may or may not be an attorney. Although hearings officers might be employees of DHHS (this will vary from state to state), they are required to be impartial. The hearing itself will be less formal than a legal trial. In many states, fair hearings are conducted in a spare room at a local DHHS office. You have the right to call witnesses, to testify yourself, to cross-examine any of DHHS’ witnesses and to offer evidence. All hearings should be recorded. You have the right to representation by an advocate or an attorney. If cost is an issue, you might want to contact your local legal aid/legal assistance program to inquire whether they are available to represent you. The fair hearing officer can only rule on whether or not the department followed its own rules. The officer cannot change department rules.

If you do not win at the fair hearing level, you have the right to appeal the decision through your state court system. Some states offer agency appeals directly to the highest state court, while others offer intermediate levels of appeal. If the issue raised in your case is significant enough, a federal court action might even be advisable. You will need the assistance of an attorney to determine the merits of further appeal.

Supplemental Security Income: Supplemental Security Income (“SSI”) is a federal cash assistance program. To be eligible for SSI, you must be permanently disabled, and you also must meet the income and asset guidelines. In most (but not all) states, eligibility for SSI means automatic eligibility to Medicaid.

Applications for SSI must be submitted to the Social Security Administration (“SSA”). If your application is denied either upon initial filing or at a time of redetermination, you will receive a written notice explaining the reasons for denial. As with Medicaid, the notices should provide the grounds for denial so the accuracy may be evaluated and a decision made on whether an appeal is warranted.

The first level of an SSI appeal is to request reconsideration. Requests for reconsideration must be made in writing using the form provided by the SSA. If you receive notice that your SSI benefits have been terminated, you may request continued benefits while the appeal is pending (i.e., “aid paid pending” as with Medicaid), if you file the request for reconsideration within 15 days of the date on the notice. Otherwise, requests for reconsideration must be filed within 60 days of the notice of denial, although an additional 60 days may be granted for “good cause.”

There are three types of reconsideration: case review, informal conference and formal conference. For each of these options, you are allowed to submit additional evidence, including new medical or test reports. All SSI applicants have a choice between a case review and an informal conference. With a case review, an SSA employee may hear oral evidence, but most likely will review only the written record before issuing a decision. At an informal conference, you may present witnesses and be represented by an attorney. An SSA employee then prepares a summary of the conference and issues a decision. A formal conference is available only if you have had your existing SSI benefits reduced, terminated or suspended. A formal conference is always preferred as it permits a full hearing, including cross-examination of SSA witnesses, and the hearing is recorded and conducted before an impartial hearing officer, rather than an SSA employee. As with the other types of reconsideration, a written decision is issued.

If SSI benefits are not granted or reinstated at the reconsideration level, the next level of appeal is to request a hearing. A hearing request must be made in writing using the required SSA form, and must be made within 60 days from the date of the reconsideration decision. The hearing is conducted in front of an Administrative Law Judge (“ALJ”), and you may produce witnesses, provide supplemental medical evidence and cross-examine any SSA witnesses. You will always want to be represented by counsel, if possible, at an ALJ hearing.

If you do not receive a favorable decision at the ALJ hearing level, you may request review by the SSA Appeals Council within 60 days of the hearing decision date. The Appeals Council is not required to consider every case, and usually considers only those cases presenting issues of wider significance. If the Appeals Council reviews the case, it will review the entire written record, plus additional written documentation you provide, but no live testimony will be taken. After review, it will issue a final decision for the SSA. If the Appeals Council refuses to review your case, its refusal is considered the SSA’s final decision. The SSA’s final decision may be appealed to the federal district court within your jurisdiction within 60 days of the decision.